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Refugee lawyer questions necessity of proposed visa legislation -

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EMILY BOURKE: For some expert legal analysis on the Government's proposed changes, I spoke to Madeline Gleeson, a lawyer and research associate at the Andrew and Renata Kaldor Centre for International Refugee Law.

MADELINE GLEESON: We've heard for a long time now that there are third countries being considered.

And when I say a long time, I mean four years. That's how long it's taken that we are still yet to hear of a third country to where everyone will be able to go.

So I would like to stop hearing about what Australia is going to do to become more and more closed and start hearing some actual answers of where people are going to go and when and on what terms.

EMILY BOURKE: In a legal sense, what are the sticking points with this proposed arrangement?

MADELINE GLEESON: Well, we're going to have to wait and see what the law actually looks like after it's been debated in Parliament.

And hopefully what we'll see in the next few weeks is a bit of push-back on its more problematic elements.

But this could either be a gross breach of the promises we've made under international law, or it could be a move that just binds the system up in more red tape. It's not exactly clear what, we've seen so far, of what this law is going to look like.

EMILY BOURKE: Is it clear to you whether this is merely an extension of the existing arrangements?

MADELINE GLEESON: There's a possibility. I mean, we've heard the Minister say that this is not really a lifetime ban; it's something that the Minister can always have discretion to revoke or override or waive in certain cases. There will be exceptions for children. He said that, in many cases, it could continue that a certain person might nevertheless get a visa to come.

So that is sounding pretty similar to the system we've got currently; just with the added sort of nasty excess routine and procedure and bureaucratic process that we'll have to follow.

EMILY BOURKE: You mentioned promises that the Australian Government has made. Are these rights of refugees legally enforceable? And in which jurisdiction?

MADELINE GLEESON: Well, if we start at the international level we've got a whole host of obligations that we've committed to - and we repeatedly commit to and we participate in all the processes to ask everyone else to commit to them as well.

And they're really crucial ones that actually resound with Australian values too: an obligation to protect families, to keep children together with their parents.

And we've also got obligations that we've made to Nauru and Papua New Guinea as our neighbours in this.

There are all sorts of jurisdictions in which the obligations could be enforced. We've got ongoing proceedings in Papua New Guinea, the possibility of something in Nauru. We've got cases lined up in Australia. There are all sorts of challenges in the works.

EMILY BOURKE: Who might spearhead any sort of legal challenge to this? And in what jurisdiction?

MADELINE GLEESON: Well, I think what we're going to see is parallel jurisdictions. At the end of the day there are three countries involved in all of this; and there's the UN as well, with their various forums and committees that can oversee conduct too.

I think what we're going to see is, in all sorts of countries, parallel efforts popping up that are going to really challenge the Government to look for a better way of resolving this.

EMILY BOURKE: Might it just be rhetoric?

MADELINE GLEESON: It might just be rhetoric, but it would be great if we could see a turn from what's the minimum we can get away with under law, or what's the most that we can get away with in being as nasty as possible, as opposed to diverting some of that energy into exploring the really good alternatives that have been put forward by various organisations about how we could, you know, start in a positive way to resolve this issue, rather than constantly just digging at the hole deeper.

EMILY BOURKE: What do you see as being the implications for families who may already be separated, if there's a provision there for ministerial discretion?

MADELINE GLEESON: If there's a provision for ministerial discretion, which would mean for example that a man on Manus whose wife and children are settled here in Sydney and the Minister has the possibility of waiving this ban and allowing him to join his kids; then that's pretty similar to the system we've got at the moment.

It begs the question why all of this effort will go into, you know, passing this whole new law and continually giving out this very extreme message, if it's just to maintain what we've got.

EMILY BOURKE: The Government says that the position is based on advice that those deemed to be refugees are, in fact, living freely on Nauru and PNG and that they do have the option of resettling there.

So where, to your mind, is the international legal breach?

MADELINE GLEESON: Well, the first issue, as I said, I think are families and children; and that's really the priority.

The second issue, as I said, are the promises to Nauru and Papua New Guinea. Now, neither of those countries has ever made a promise that they will settle absolutely everyone found to be a refugee on those countries.

They've never made that promise, so it's actually not an option legally speaking for people to remain there. And Australia has said, "We will help them find alternative arrangements."

And there are a whole lot of other little issues that pop up as well, once you look at the reality of it.

What were to happen, for example, if someone were to require emergency medical evacuation from Nauru or Papua New Guinea and Australia was the only country in the region that was equipped to provide that care? We've seen that happen previously.

Would that person not be allowed to come? Would they be held up in their treatment by having to go through the red tape? We'd have to wait and see.

EMILY BOURKE: In coming to this arrangement, is there effectively discrimination on the basis of refugee status, in that an individual has tried and failed to get to Australia? It's not because of bad character or security concerns or criminal history: this is a new category. So does that contravene international law at all?

MADELINE GLEESON: It does, but that system we've already had. It's been discriminatory for quite a while now and this just continues and amplifies that discrimination by creating different classes - first class, second class, third class refugees - which is prohibited.

EMILY BOURKE: How does Australia have jurisdiction in that third country? Wouldn't it be possibly problematic for border controls managing the flow of people from, say, Auckland to Sydney? Would their passport need to be marked in a certain way?

MADELINE GLEESON: Mm, I think it would throw up all sorts of legal, practical, but also diplomatic problems looking into the future.

And again, it's very confusing to understand why this is necessary because already, if you're coming from various countries, you're subject to the approval of the Australian Immigration Department.

That already exists as part of the, you know, right of the Australian Government to control who comes in and out of the country.

EMILY BOURKE: Madeline Gleeson, a lawyer and research associate at the Andrew and Renata Kaldor Centre for International Refugee Law at the University of New South Wales.